Larry Haynes v. District of Columbia Water

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2018 Decided May 17, 2019

No. 17-7147

LARRY HAYNES,
APPELLANT

v.

DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-02086)

David A. Branch argued the cause and filed the briefs for
appellant.

Alison N. Davis argued the cause for appellee. With her on
the brief was Meredith L. Schramm-Strosser.

Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Larry Haynes had worked at the
D.C. Water and Sewer Authority (“D.C. Water”) for nearly
thirty years when his position was eliminated as part of a
 2
reorganization. D.C. Water offered Haynes a new position, but
he was unable to obtain the license that position required and
lost his job. Haynes alleges that he was treated differently than
other employees affected by the reorganization due to his race,
age, and learning disability, and that D.C. Water refused to
accommodate his disability when it set deadlines for him to
obtain the new license. He brings claims under various federal
and D.C. civil rights statutes. The district court granted D.C.
Water summary judgment, Haynes appealed, and we affirm.

I

D.C. Water is an independent agency of the D.C.
government that provides water and sewage service to the
District of Columbia. Haynes v. DC Water is Life, 271 F. Supp.
3d 142, 145 (D.D.C. 2017). Haynes started working at D.C.
Water’s predecessor organization in 1988. He was an
“Electrical Equipment Repairer,” grade “11/CDL.” D.C. Water
had long required Repairers in that position to hold a Class B
Commercial Driver’s License (CDL) and an apprentice
electrician license, both of which Haynes possessed.

In 2014, D.C. Water consolidated several departments.
Many positions were to remain the same after the
reorganization, but some, including Haynes’s, were to be
eliminated or replaced. D.C. Water also discovered during this
reorganization that D.C. law requires individuals holding
apprentice electrician licenses—such as Haynes—to be
directly supervised by master electricians. Problematically,
D.C. Water did not employ enough master electricians to
supervise all the Electrical Equipment Repairers holding
apprentice electrician licenses, and, by mid-2014, determined
that it would not be feasible to hire enough master electricians
to do so. D.C. Water thus concluded that the Electrical
Equipment Repairer position would be replaced by an
 3
“Industrial Journeyman Electrician” position, and that
individuals employed in the new position would be required to
hold a more advanced journeyman electrician license that
permitted additional unsupervised work.

After negotiations with the union representing affected
employees, D.C. Water set a March 31, 2015 deadline for
current Repairers to obtain their new licenses. Repairers who
obtained the proper licenses on or before that date were to be
retained as Industrial Journeyman Electricians, and those that
did not would be fired. Beginning on September 2, 2014,
Haynes and other Repairers attended training sessions offered
by D.C. Water. Haynes alleges that around this time he told
D.C. Water’s Human Resources Department that he was
dyslexic and needed more time to prepare for the exam,
particularly because the training was a “refresher” course “not
meant for first-time test takers.” Haynes, 271 F. Supp. 3d at
148-49 (quoting Am. Compl. ¶ 8). Indeed, a journeyman
electrician license generally requires years of training and
supervised work. Id. Haynes, who is over fifty and black,
alleges that younger, white electricians employed by D.C.
Water received accommodations, including being given more
time to obtain their licenses, not being subjected to the
heightened license requirement, or being allowed to return to
school for additional training. In contrast, D.C. Water refused
to offer Haynes additional time or any other accommodation.
Haynes completed the training offered by D.C. Water on
December 9, 2014, but still felt unprepared for the license
examination. Shortly thereafter, he began attempting to get
medical documentation of his disability.

As of March 31, 2015, Haynes had failed to take the
journeyman electrician exam and been unable to get medical
documentation of his dyslexia. The next day, D.C. Water sent
him a letter explaining that his failure to comply with the
 4
licensing deadline meant that he could no longer perform any
electrical work. D.C. Water did, however, give him sixty more
days (until May 31, 2015) to pass the examination. Haynes was
able to meet with a clinical psychologist on May 13, who
diagnosed Haynes with a “[r]eading [d]isorder with
impairment in word reading and reading comprehension,” and
a “[w]riting [d]isorder with impairment in written expression
and spelling.” Joint Appendix (“J.A.”) 157. The psychologist
concluded that it would be “reasonable” for Haynes’s “current
job . . . to accommodate for [these] reading and writing
disabilities.” Id. The record is silent as to whether Haynes
presented this documentation to his employer.

What is clear is that on May 26, 2015, Haynes went to the
Washington Field Office of the Equal Employment
Opportunity Commission (EEOC). There he submitted an
intake questionnaire describing what had happened at work and
requesting additional counseling about whether to file a charge
of discrimination. Later that day, he filed such a charge. On
May 27, Haynes received a Notice of Right to Sue from the
EEOC, which stated that “[b]ased upon its investigation,” the
agency was “unable to conclude that the information obtained
establishe[d] violations of the” Americans with Disabilities Act
of 1990, 42 U.S.C. § 12101 et seq. (ADA), although the EEOC
did “not certify that [D.C. Water] [was] in compliance with the
statute[].” J.A. 173. The notice also contained information
about Haynes’s right to file a lawsuit.

Haynes failed to complete the journeyman electrician
license exam by the extended deadline of May 31, 2015 and
was fired. At that time, there were six other Electrical
Equipment Repairers in the same grade (“11/CDL”) as Haynes.
Five were black and one was white. Two of the black
employees already had the necessary license for the new
position before the reorganization. Prior to March 31, 2015,
 5
one black Repairer and the white Repairer completed the exam.
Along with Haynes, the remaining two black employees did
not complete the licensing exam by March 31, 2015 and were
given the additional sixty-day extension. They also appear to
have been laid off.

On September 29, 2016, Haynes filed a pro se complaint
in the district court, alleging that D.C. Water failed to
accommodate his learning disability when it set the deadlines
for him to acquire a new license. Haynes eventually retained
counsel and filed an amended complaint that includes claims
for breach of contract, disability discrimination in violation of
the ADA, race discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and
the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section
1981”), and age discrimination under the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq. (ADEA). Haynes
brings the same discrimination claims under the D.C. Human
Rights Act, D.C. Code § 2-1401 et seq. (DCHRA). Shortly
thereafter, D.C. Water moved for summary judgment. Haynes
opposed the motion as premature, seeking discovery under
Federal Rule of Civil Procedure 56(d). The district court denied
Haynes’s request for discovery and granted summary judgment
to D.C. Water. Haynes, 271 F. Supp. 3d at 163.

Haynes appealed the district court’s decision except as to
the breach of contract claim. The district court had federal
question jurisdiction over Haynes’s Section 1981, ADA, Title
VII, and ADEA claims under 28 U.S.C. § 1331. It exercised
supplemental jurisdiction over Haynes’s DCHRA claim under
28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C.
§ 1291.
 6
II

We affirm the district court because (1) Haynes’s ADA
and DCHRA claims were untimely; (2) he failed to exhaust his
administrative remedies prior to bringing his Title VII and
ADEA claims; (3) it was within the district court’s discretion
to conclude that further discovery on Haynes’s only potentially
viable claim—the one brought under Section 1981—was
unwarranted, given the lack of detail in Haynes’s Rule 56(d)
declaration; and (4) summary judgment on Haynes’s Section
1981 claim was appropriate given the record before the district
court.

A

We review the district court’s grant of summary judgment
de novo. Epsilon Elecs., Inc. v. U.S. Dep’t of Treasury, Office
of Foreign Assets Control, 857 F.3d 913, 918 (D.C. Cir. 2017).
Summary judgment is warranted if the record, viewed in the
light most favorable to the nonmoving party, demonstrates that
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a); Thompson v. District of Columbia, 832 F.3d 339, 344
(D.C. Cir. 2016). We must “draw all reasonable inferences” in
the nonmoving party’s favor, Thompson, 832 F.3d at 344, and
“[t]he evidence of the non-movant is to be believed,” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine
issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Liberty Lobby, 477 U.S. at 248. And although “the
doctrine of equitable tolling ordinarily involves discretion on
the trial judge’s part,” here the district court declined to toll the
relevant statutes of limitations “based upon [its] finding that as
a matter of law [Haynes’s] evidence could not support
invocation of the equitable tolling doctrine based upon [his]
 7
mental state.” Smith-Haynie v. District of Columbia, 155 F.3d
575, 578 n.4 (D.C. Cir. 1998). That means we review de novo
that aspect of the district court’s decision as well. Id. at 578.

Under Federal Rule of Civil Procedure 56(d), when a party
moves for summary judgment and the “nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.” FED. R. CIV. P. 56(d). We
review the district court’s denial of a request for discovery for
abuse of discretion. Novecon Ltd. v. Bulgarian-Am. Enter.
Fund, 190 F.3d 556, 570 (D.C. Cir. 1999).

B

We first affirm the district court’s conclusion that
Haynes’s ADA and DCHRA claims were untimely. Haynes
received a Notice of Right to Sue from the EEOC on May 27,
2015. Under the ADA, he had ninety days from that date to file
a complaint in court, meaning that the last day for Haynes to
file an ADA claim was August 25, 2015. See 42 U.S.C.
§ 12117; 42 U.S.C. § 2000e-5(f). Under the DCHRA, he had
one year from “the occurrence of the unlawful discriminatory
practice” to bring suit. D.C. Code § 2-1403.04(a). The last
allegedly discriminatory action taken by D.C. Water was
Haynes’s discharge on May 31, 2015, making May 31, 2016,
the last possible day to bring suit under the DCHRA.

Haynes filed his first complaint on September 29, 2016,
and he acknowledges that this date fell beyond each statute’s
deadline. He asserts, however, that his problems with reading
and comprehension so affected his understanding of his legal
rights that he was unable to handle his affairs, rendering him
 8
“non compos mentis” at the time his right to file suit accrued
and equitably tolling the filing deadline. Haynes Br. 19; see
also Non Compos Mentis, BLACK’S LAW DICTIONARY (10th
ed. 2014) (defining the Latin phrase as “not master of one’s
mind”). The burden of proving that the statutes of limitations
should have been equitably tolled rests with Haynes. See Smith-
Haynie, 155 F.3d at 579. He has failed to carry it.

We begin by clarifying the law that governs whether
Haynes was non compos mentis at the time his right to file suit
accrued. The parties suggested that D.C. law regarding this
species of equitable tolling applies to both Haynes’s ADA and
DCHRA claims. The district court followed their lead and
applied D.C. law in declining to toll the statutes of limitations.
See Haynes, 271 F. Supp. 3d at 152. This approach was wrong
in part, because it is a question of federal law whether the
statute of limitations on Haynes’s ADA claim has run. See
Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278-79 (1st
Cir. 1999); see also Mondy v. Sec’y of the Army, 845 F.2d 1051,
1057 (D.C. Cir. 1988) (holding that whether Title VII’s statute
of limitations, which the ADA incorporates, should be
equitably tolled is a question of federal law). Nevertheless, we
can affirm “on any basis supported by the record,” United
States v. Hicks, 911 F.3d 623, 626 (D.C. Cir. 2018) (citation
omitted), and do so here.

Indeed, as a practical matter, the distinction between
federal and state law makes no difference in this case: The
relevant D.C. law relied on by the parties and the district court
merely restates a “universally applied standard” that is also
employed by the federal courts “for determining when a person
is mentally unsound for purposes of tolling [a] civil statute of
limitations.” Speiser v. U.S. Dep’t of Health & Human Servs.,
670 F. Supp. 380, 384 (D.D.C. 1986) (collecting cases), aff’d,
818 F.2d 95 (D.C. Cir. 1987); see also Smith-Haynie, 155 F.3d
 9
at 579-80 & n.5 (“[u]sing District of Columbia law as a
touchstone” to determine whether a Title VII plaintiff was non
compos mentis and observing that the applicability of federal
law “does not, of course, preclude the use of District of
Columbia law to distill basic common law principles”). Under
that unified standard, non compos mentis “means generally one
who is not capable of handling his own personal affairs or who
cannot function in society.” Oparaugo v. Watts, 884 A.2d 63,
73 (D.C. 2005) (citing Hendel v. World Plan Exec. Council,
705 A.2d 656, 665 (D.C. 1997)). “The disability of a person
claiming to be non compos mentis must be of such a nature as
to show [she] is unable to manage [her] business affairs or
estate, or to comprehend [her] legal rights or liabilities.” Smith-
Haynie, 155 F.3d at 580 (internal quotation marks omitted).

Haynes argues that his “functional[] illitera[cy]” rendered
him non compos mentis, Reply Br. 18-20, because his
“learning disability and dyslexia impeded his ability to
understand his legal obligations and exercise his legal rights,”
Haynes Br. 19. As evidence, he points to (1) language in his
original, pro se complaint that suggests that he misunderstood
the Notice of Right to Sue as setting a future hearing date rather
than informing him of his right to file a lawsuit within 90 days;
(2) several errors in his initial EEOC questionnaire, including
his inconsistent indication of whether he had a disability and a
statement that he had been discriminated against on the basis
of genetic information; and (3) reports issued by the
psychologist he saw in May 2015. Haynes Br. 19-21. This
evidence is insufficient to create a dispute of material fact as to
whether Haynes was non compos mentis at any time, much less
for the length of time necessary to bring his claims within the
relevant statutes of limitations.

Our decision in Smith-Haynie v. District of Columbia is
particularly instructive. In that case, the plaintiff filed suit
 10
under Title VII ninety-two days after she received her Notice
of Right to Sue but claimed that the statute of limitations should
have been tolled because she had been unable “to grasp the
meaning of the 90-day limitations period” due to emotional
trauma. Smith-Haynie, 155 F.3d at 579. We rejected that
argument, observing that the “hurdle is high” for a plaintiff
asserting equitable tolling because the court’s equitable power
“will be exercised only in extraordinary and carefully
circumscribed instances.” Id. at 579-80 (internal quotation
marks omitted). Most importantly, we drew a distinction
between the inability to carry out life’s ordinary tasks and
“[i]mpaired judgment” or the assertion that a plaintiff “did not
understand” her legal rights, concluding that a person who is
non compos mentis must be able to present evidence that she
was “incapable of handling her own affairs or unable to
function [in] society.” Id. at 580 (internal quotation marks
omitted).

We went on to suggest that to successfully invoke this
doctrine, a plaintiff must proffer evidence that she was
“[un]able to engage in rational thought and deliberate decision
making sufficient to pursue [her] claim alone or through
counsel,” id. (quoting Nunnally v. MacCausland, 996 F.2d 1, 5
(1st Cir. 1993)), or evidence “to support an inference that [the
plaintiff] was ‘in fact prevent[ed] . . . from managing [her]
affairs,’” id. (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th
Cir. 1996)). We contrasted this sort of information with the
evidence presented by the plaintiff in Smith-Haynie, who had
not “shown that she was ever adjudged incompetent, signed a
power of attorney, had a guardian or caretaker appointed or
otherwise . . . let someone else handle her affairs.” Id. (quoting
Speiser, 670 F. Supp. at 385). Finally, we observed that when
a plaintiff belatedly files suit, the argument for equitable tolling
is strengthened when she can explain what precipitated the
 11
eventual exercise of her legal rights or spurred her to retain
counsel. Id.

Haynes’s learning disability resembles the plaintiff’s
condition in Smith-Haynie in that it may have interfered with
his ability to understand the statute of limitations and exercise
his legal rights. Critically, however, Haynes’s medical records
demonstrate that he retained the ability to “handl[e] h[is] own
affairs and function[] in society.” See id. His “[t]hought content
was devoid of delusion . . . or any symptoms of psychosis.”
J.A. 155. Haynes “did not exhibit significant attention and
concentration problems,” and “was adequately oriented to
time, place and person.” Id. He was able to interact with the
psychologist normally, follow directions, and “answered all the
questions presented to him.” Id. After speaking with Haynes,
the psychologist concluded that his “thought process was
coherent, logical and goal directed,” noting that “[h]e was able
to reach his goal of thoughts without significant digression.”
J.A. 154-55. Indeed, as the district court noted, “[m]issing
from” Haynes’s filings are “any references to materials in the
record of this case tending to show that [he] could not manage
his own affairs or otherwise function in society because of a
reading disorder.” Haynes, 271 F. Supp. 3d at 154.

Nor has Haynes explained why he was able to ascertain
and exercise his legal rights by bringing suit in federal court
when he eventually did, but was unable to do so during the
ninety-day period following receipt of the Notice of Right to
Sue or the year following his termination. Instead, the evidence
shows that Haynes was able to contact the EEOC, receive
counseling about his legal rights, file a charge of
discrimination, file a federal lawsuit, and eventually retain
counsel. This series of actions—absent further explanation—
weighs against his having been non compos mentis.
 12
We do not mean to diminish the severity of Haynes’s
learning disability or the effect that it may have had on his
ability to understand the written information given to him by
the EEOC. But our precedent makes clear that lack of
understanding is not enough—a plaintiff claiming he was non
compos mentis must demonstrate an inability to handle his
everyday affairs or function in society. Haynes has offered no
evidence that his capacities were so limited and presented
medical reports to the contrary. We must, accordingly,
conclude that he has failed to meet the demanding standard our
case law sets for equitable tolling and that his ADA and
DCHRA claims are untimely.

C

Haynes also brings claims under the ADEA and Title VII,
arguing that D.C. Water discriminated against him due to his
age and race. Because Haynes did not allege race or age
discrimination when he filed a charge of discrimination with
the EEOC, he failed to exhaust his administrative remedies as
to these claims. We will therefore affirm the district court’s
grant of summary judgment to D.C. Water.

Prior to filing a suit alleging violations of the ADEA and
Title VII, a plaintiff must exhaust her administrative remedies.
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995);
Kennedy v. Whitehurst, 690 F.2d 951, 961 (D.C. Cir. 1982).
That means “fil[ing] an administrative charge with the EEOC
and allow[ing] the agency time to act on the charge” before
commencing litigation. Park, 71 F.3d at 907; 42 U.S.C.
§ 2000e-5(b); 29 U.S.C. § 626(d). Generally, a plaintiff may
only bring claims in district court that were actually part of the
administrative charge. Park, 71 F.3d at 907. But in Park v.
Howard University, we held that a plaintiff may also bring
claims that are “like or reasonably related to the allegations of
 13
the charge and growing out of such allegations.” 71 F.3d at 907
(quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994)).1 “[F]or a charge to be regarded as ‘reasonably
related’ to a filed charge . . . it must at a minimum . . . arise
from the administrative investigation that can reasonably be
expected to follow the charge of discrimination.” Payne v.
Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal quotation
marks and alteration omitted). “This connection is necessary to
give the agency ‘an opportunity to resolve [the] claim
administratively before [the employee] file[s] her complaint in
district court.’” Id. (quoting Wiley v. Glassman, 511 F.3d 151,
160 (D.C. Cir. 2007)).

The charge of discrimination form Haynes filed with the
EEOC asks complainants to check a box underneath the
heading “Discrimination Based on” to indicate the basis of

1
In National Railroad Passenger Corp. v. Morgan, the
Supreme Court rejected the “continuing violation” doctrine, which
had allowed Title VII plaintiffs to bring otherwise untimely claims
on the theory that more recent discrimination or retaliation was part
of the same unlawful employment practice. 536 U.S. 101, 110-14
(2002). Some lower courts read Morgan as “teaching that each
discrete incident” of discriminatory or retaliatory conduct
“constitutes its own ‘unlawful employment practice’ for which
administrative remedies must be exhausted.” Martinez v. Potter, 347
F.3d 1208, 1210 (10th Cir. 2003). On that understanding, Morgan
would likely preclude the approach we took in Park. Other courts
read Morgan as addressing timeliness rather than exhaustion. Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 303 (4th Cir. 2009) (“Morgan
addresses only the issue of when the limitations clock for filing an
EEOC charge begins ticking with regard to discrete unlawful
employment practices,” rather than addressing “exhaustion
requirements for claims of related, post-charge events.”). We need
not decide whether our “like or reasonably related” doctrine survives
Morgan, because Haynes cannot even meet the standard set forth in
Park. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010).
 14
their charge. Haynes checked “disability,” leaving the boxes
for “race,” “color,” and “age” blank. J.A. 143. His narrative
describing the alleged discrimination also lacked any mention
of age or race. Instead, he wrote that “I have a disability and
require reasonable accommodations,” that “My Employer has
not provided me with reasonable accommodations,” and that

I believe that my layoff (and possible subsequent
termination as a result of being unable to obtain these
licenses) was discriminatory in violation of the Americans
with Disabilities Act of 1990, as amended, (“ADA”) and
that my Employer has failed to provide[] me with a
reasonable accommodation in violation of the ADA.

Id. Haynes’s EEOC intake questionnaire similarly references
disability discrimination. He checked the box stating “Yes, I
have a disability,” wrote that he was discriminated against
because of a “[l]earning disability,” and stated that he asked
verbally for “changes or assistance to do [his] job because of
[his] disability.” J.A. 167. As a result, the district court held
that Haynes failed to exhaust his age and race discrimination
claims because it was “simply . . . not reasonable to conclude
that an investigation of the allegations in plaintiff’s EEOC
charge, particularly in light of its repeated mention of
‘disability’ and ‘reasonable accommodation,’ would uncover a
claim of discrimination based on race or age.” Haynes, 271 F.
Supp. 3d at 155.

Haynes argues on appeal that his “emphasis” in the
administrative proceeding “on his disability claim should not
preclude other discrimination claims that would arise from the
investigation,” given that all his claims arise from the same
series of events. Haynes Br. 23. Haynes has not, however,
explained why information regarding race or age
discrimination would arise from an investigation into the
 15
accommodation of his disability. Indeed, he does not address
race discrimination at all, forfeiting the argument. See Haynes
Br. 21-23; see also Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C.
Cir. 2019) (“Mentioning an argument ‘in the most skeletal way,
leaving the court to do counsel’s work, . . . and put flesh on its
bones’ is tantamount to failing to raise it.” (quoting Schneider
v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005))).

With respect to age discrimination, Haynes argues only
that the fact that he twice wrote the word “Age” in his EEOC
questionnaire after the names of the other two Repairers who
did not timely complete their exams means that the EEOC
would have examined his allegations of age discrimination
when conducting its investigation. Haynes Br. 23; J.A. 166.

We reject this argument for two reasons. First, these
references to age are in the questionnaire Haynes submitted to
the EEOC, rather than his actual charge of discrimination.
Compare J.A. 166, with J.A. 143. Such a questionnaire can be
treated as part of the “charge,” exhausting the claims described
in it. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402-
04 (2008) (holding that the EEOC “acted within its authority in
formulating the rule that a filing is deemed a charge if the
document reasonably can be construed to request agency action
and appropriate relief on the employee’s behalf”); J.A. 168
(“Consistent with 29 C.F.R. 1601.12(b) and 29 C.F.R.
1626.8(c), this questionnaire may serve as a charge if it meets
the elements of a charge.”). But Haynes has offered no reason
why we should treat his questionnaire that way. To the
contrary—Haynes expressly indicated on the questionnaire
that he did not wish for it to be treated as a charge. Rather than
check the box on the form that states “I want to file a charge of
discrimination,” Haynes marked a separate box that says “I
want to talk to an EEOC employee before deciding whether to
file a charge. I understand that by checking this box, I have not
 16
filed a charge with the EEOC.” J.A. 168 (emphasis added); see
also Park, 71 F.3d at 908-09 (holding that the contents of a
similar, unsworn intake questionnaire did not form part of the
administrative charge for exhaustion purposes). Some
questionnaires may be properly understood as charges; this one
may not be.

But even if we were to assume that the intake
questionnaire formed part of the charge, we would reject
Haynes’s argument that he exhausted his age discrimination
claim for a second reason. The section of the questionnaire
where he twice wrote “Age” directs the filer to list the “race,
sex, age, national origin, religion, or disability of” similarly
situated employees who were “treated better than you,” “if
known, and if it relates to your claim of discrimination.” J.A.
166. Following the names of the two Repairers who were also
laid off, Haynes wrote the word “Age” twice. According to
him, “[t]he only reason . . . [he] would list the age of ‘similarly-
situated’ employees is to allege age discrimination.” Haynes
Br. 23. Haynes, however, did not actually list the ages of the
other employees. He wrote the word age. Moreover, he then
crossed out that entire section of his questionnaire, wrote
“Nobody,” and rewrote the names of the two employees in the
section of the questionnaire asking for similarly situated
employees who were “treated the same as you”—which, of
course, is the proper place to describe the employees who
Haynes alleges were also laid off for failing to timely complete
the test. J.A. 167. When he did so, he did not again write “Age”
in the column for information relevant to his claim of
discrimination. Id. We cannot agree that the EEOC would have
uncovered evidence relevant to Haynes’s age discrimination
claims on the basis of two crossed-off references to “Age” in a
questionnaire and charge that otherwise repeatedly and
exclusively described disability discrimination.
 17
Because Haynes’s EEOC charge “contained no claims or
factual allegations that could reasonably be expected upon
investigation to lead to” evidence supporting claims of race or
age discrimination, he failed to exhaust his ADEA and Title
VII claims. Park, 71 F.3d at 909. We therefore affirm the
district court’s grant of summary judgment to D.C. Water on
these counts.

D

Finally, Haynes argues that the district court erred when it
denied his Rule 56(d) request for discovery and granted D.C.
Water summary judgment on his Section 1981 claim. Because
the declaration Haynes filed failed to meet the standards set by
Convertino v. U.S. Department of Justice, 684 F.3d 93 (D.C.
Cir. 2012), we affirm the district court. 2

2
The parties dispute whether Haynes properly raised an
objection to the district court’s grant of summary judgment other
than that discovery should have been permitted. Haynes claims in his
opening brief that the district court improperly disregarded his
evidence that D.C. Water’s proffered reason for discharging him was
pretextual. Haynes Br. 10-11. We read that statement to challenge
the appropriateness of summary judgment, albeit on the narrow
ground that the district court wrongly failed to credit Haynes’s
assertion that “Utility Workers, consisting of primarily Caucasian
employees, received additional time and training to obtain their
Journeyman’s license.” Id. That argument is without merit. D.C.
Water presented evidence that utility workers were not electricians
subject to the licensure requirements that Haynes alleges were
discriminatorily administered. Haynes, 271 F. Supp. 3d at 158-59.
Rather than file a declaration or other materials disputing that
evidence, Haynes offered only argument. That cannot create a triable
issue of fact. See FED. R. CIV. P. 56(c)(1) (“A party asserting that a
fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
 18

“Section 1981 protects the right ‘to make and enforce
contracts’ free from racial discrimination.” Nanko Shipping,
USA v. Alcoa, Inc., 850 F.3d 461, 467 (D.C. Cir. 2017) (quoting
42 U.S.C. § 1981(a)). Although the framework for evaluating
Section 1981 claims resembles that for Title VII claims,
discrimination under Section 1981 must be intentional,
DeJesus v. WP Co. LLC, 841 F.3d 527, 532 (D.C. Cir. 2016),
and there are no administrative remedies to exhaust, Johnson
v. Ry. Exp. Agency, Inc., 421 U.S. 454, 461 (1975).

Haynes alleges that D.C. Water violated Section 1981
when it “changed his official position to require an unnecessary
license, gave him six months to obtain the Journeyman
Electrician License while giving Caucasian electricians
eighteen months to two years to obtain” the same licenses,
“denied Mr. Haynes the chance to go back to school while
offering Caucasian employees the opportunity to take classes
and obtain the education necessary to earn their Journeyman
Electrician Licenses, removed him from his position, and
terminated him from his employment.” J.A. 11-12.

D.C. Water moved for summary judgment less than a
month after Haynes filed the amended complaint in which he
first made a Section 1981 claim, stating that it had discharged
Haynes only because he failed to obtain the license needed to
do his job. In response to Haynes’s allegations that he had been

or declarations, stipulations . . . , admissions, interrogatory answers,
or other materials . . . .”); see also Burke v. Gould, 286 F.3d 513, 517
(D.C. Cir. 2002) (“[I]n opposing a motion for summary judgment
that is supported as provided in the Rule, the adverse party ‘may not
rest upon the mere allegations or denials of the adverse party’s
pleading, but . . . by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for
trial.’” (quoting Liberty Lobby, 477 U.S. at 248)).
 19
treated differently, D.C. Water presented evidence that all
employees required to obtain journeyman electrician licenses
had been subject to the same requirements and deadlines. In
addition to opposing the motion on the merits, Haynes filed a
declaration from his lawyer pursuant to Rule 56(d) requesting
that summary judgment be delayed pending discovery. The
rule provides that “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.” FED. R. CIV. P. 56(d). Haynes argues
that the district court abused its discretion when it denied him
a chance to take discovery regarding, in relevant part:

1. All electronic messages from Defendant’s managers
relating to the reorganization and impact on
employees based on race, age, and education and
competence to pass examination for a license.
2. All documents and electronic messages regarding the
elimination of the Electrician Repair 9 and 11
position.
3. All documents regarding the treatment of Plaintiff’s
similarly-situated colleagues (electricians).
4. All documents relating to the time other Defendant
employees received to obtain a Journeyman
Electrician License and any back to school offers to
other employees.
5. All documents related to the race, age and disability
of Defendant employees who were offered additional
time to obtain a Journeyman’s license or an
opportunity to go back to school.
6. All documents and electronic communications
reflecting contacts with Occupational and
 20
Professional Licensing Division regarding
electrician’s duties.

J.A. 140-41.

At first blush, Haynes has a point. Summary judgment
usually “is premature unless all parties have ‘had a full
opportunity to conduct discovery,’” Convertino, 684 F.3d at 99
(quoting Liberty Lobby, 477 U.S. at 257), and here, no
discovery had taken place. We held in Convertino, however,
that regardless of the time at which a motion for summary
judgment is filed, an affidavit or declaration submitted under
Rule 56(d) must: (1) “outline the particular facts [the
nonmovant] intends to discover and describe why those facts
are necessary to the litigation;” (2) “explain why [the
nonmovant] could not produce [the facts] in opposition to the
motion [for summary judgment];” and (3) “show the
information is in fact discoverable.” Id. at 99-100 (internal
quotation marks omitted). This inquiry must be resolved
through “application of the Convertino criteria to the specific
facts and circumstances presented in the request,” rather than
on the basis of presumptions about a given stage of litigation.
U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,
27 (D.C. Cir. 2014).

This case turns on the first of the Convertino factors. 3 The
district court held that Haynes’s two-page declaration failed to

3
The district court also concluded that Haynes had failed to
explain why he could not produce some of the materials requested,
thus failing to meet the second Convertino factor. And on appeal,
D.C. Water argues that the declaration was deficient with respect to
all three factors. Because each factor must be fulfilled for a
nonmovant to secure discovery, our conclusion that the declaration
failed to explain adequately why the facts sought were necessary to
 21
adequately explain why the facts outlined above were
necessary to the litigation. We agree. Although the declaration
listed categories of “information and documentation” that
Haynes “needed to respond to the issues raised in [D.C.
Water’s] Motion for Summary Judgment,” J.A. 140-41, it said
nothing about “why those facts [were] necessary” to respond to
the motion or to support the allegations in the complaint,
Convertino, 684 F.3d at 99 (emphasis added). Even looking
beyond Haynes’s declaration to his briefing, his explanation
remains deficient in light of the evidence already in the record,
his theory of the case, and the discovery actually requested. See
Smith v. United States, 843 F.3d 509, 513 (D.C. Cir. 2016)
(analyzing nonmovant’s opposition under first Convertino
factor); Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045-46 (D.C.
Cir. 2008) (considering whether the necessity of the requested
evidence was “self-evident” and otherwise looking beyond the
declaration).

D.C. Water’s proffered justification for Haynes’s
discharge was compliance with a D.C. law requiring that
electricians possess journeyman licenses prior to working with
the level of supervision Haynes had. Haynes contends that
reason was pretext because other employees subjected to new
licensure requirements during the reorganization were given
further accommodations. As relevant here, in Haynes’s
complaint he describes those other employees as electricians
who received additional flexibility in obtaining their
journeyman electrician licenses. D.C. Water then presented
evidence that the only electricians subject to new licensure
requirements during the reorganization were Electrical
Equipment Repairers like Haynes, and that all the Repairers

the litigation resolves the case without the need to reach the other
factors.
 22
were treated the same (or worse) than Haynes. J.A. 21-22, 46,
62-63.

After D.C. Water produced this evidence about the other
electricians affected by the reorganization, Haynes broadened
the group of employees he alleged were subjected to relaxed
licensing requirements. He argued that discovery regarding
non-electricians was necessary to determine whether similarly
situated employees existed who were given additional time to
obtain non-electrical licenses. He also suggested that discovery
about the reorganization more generally was necessary to
determine whether it disproportionately impacted African-
American employees who had long worked in limited-skill
positions at D.C. Water.

Discovery along these lines might have supported
Haynes’s claim of discrimination and a request for such
discovery could have rendered summary judgment premature.
Almost all the information Haynes identified in his request for
discovery, however, is expressly restricted to information
about electricians affected by the reorganization. And Haynes
failed to explain adequately why the more general category of
information he identified in his declaration was necessary to
create a triable issue of fact. As the district court concluded, his
explanations fall short of the level of particularity we have
previously concluded is necessary to meet the first Convertino
factor. See Kohn Aff., Convertino v. U.S. Dep’t of Justice, No.
1:04-cv-00236 (D.D.C. Oct. 18, 2010), Dkt. No. 187-1
(describing the particular aspects of the motion that discovery
was necessary to rebut, the specific discovery that would be
sought, and how that information would create a genuine
dispute of material fact with respect to six facts underlying the
movant’s arguments); see also Smith, 843 F.3d at 513 (holding
that the first Convertino factor requires explaining “how” the
requested facts “could create a material factual dispute”). He
 23
did not, for example, explain how the treatment of non-
electricians could call into question D.C. Water’s proffered
reason for his discharge, which was specific to D.C. law on the
licensing of electricians. He also failed to identify with even a
modest level of specificity those categories of non-electricians
that might have been subject to more relaxed licensing
requirements.

Haynes’s response is twofold. First, he argues that we
have, in the past, held that it was an abuse of discretion to deny
discovery following the production of similarly vague
declarations or affidavits. Haynes Br. 16-18. But the cases he
relies on for this proposition were decided before Convertino
established the applicable standard. The declarations at issue in
those cases, moreover, still described with greater specificity
how the requested information might create a dispute of
material fact. Kohn Aff., Ikossi v. Dep’t of Navy, No. 1:04-cv-
01392 (D.D.C. Feb. 4, 2005), Dkt. No. 10-2; Shapiro Aff.,
Chappell-Johnson v. Powell, No. 1:03-cv-01557 (D.D.C. Dec.
1, 2003), Dkt No. 14-2.

Second, Haynes says that the district court necessarily
abused its discretion by requiring him to produce evidence that
D.C. Water’s explanation for his discharge was mere pretext.
Haynes Br. 14-15. He argues that the relevant inquiry prior to
discovery is whether he stated a claim, not whether he created
a dispute of material fact regarding pretext. This claim of legal
error conflates two separate conclusions of the district court.
First, the district court concluded that Haynes’s Rule 56(d)
request was deficient and denied discovery. Then it concluded
that on the present record Haynes had failed to create a dispute
of material fact as to whether D.C. Water’s proffered reason for
discharging him was pretext. Having decided that Haynes was
not entitled to discovery, faulting him for failing to create a
dispute of material fact was entirely proper—and indeed
 24
required to grant summary judgment. That Haynes’s complaint
may have survived a motion to dismiss because he stated a
claim is, given the motion for summary judgment and proffer
of a legitimate, nondiscriminatory reason, irrelevant.

* * *

Our decision in Convertino provides a roadmap for
securing discovery. When it comes to the first factor, that guide
directs nonmovants to file an affidavit or declaration
explaining, with sufficient particularity, what specific facts are
required to oppose the motion and why those facts are
necessary to the litigation. What counts as “sufficient
particularity” will necessarily be a case-specific inquiry,
dependent on the nature of the claims and the existing record.
But the affidavits we have approved of in prior cases have two
things in common. First, they discuss the specific facts that
must be discovered to support a plaintiff’s legal theory, rather
than recite broad categories of information—even if broad
categories of information will ultimately be requested to
uncover those specific facts. Second, they explain why the
required information could create a dispute of material fact,
even when its ultimate import is unclear, and connect the
information sought to the theory of relief advanced. Haynes’s
declaration was deficient on both counts.

Though in some cases the relevance and necessity of the
requested discovery are so obvious given the claims that little
more than identification of the information is required to head
off a pre-discovery motion for summary judgment, see Ikossi,
516 F.3d at 1045-46, given the complexities of Haynes’s
Section 1981 theory of liability, this is not such a case.
Accordingly, we conclude that the district court did not abuse
its discretion in denying Haynes’s Rule 56(d) request for
discovery.
 25

III

Haynes’s ADA and DCHRA claims are untimely, his
ADEA and Title VII claims were not properly exhausted before
the EEOC, the district court did not abuse its discretion in
denying Haynes’s request for discovery, and summary
judgment on his Section 1981 claim was appropriate. We
therefore affirm the district court.

So ordered.